Smithberger v. Banning

• Decision Date: 20 September 1935
• Docket Number: 29603.
• Citation: 262 N.W. 492,129 Neb. 651
• Parties: SMITHBERGER ET AL. v. BANNING, SECRETARY OF DEPARTMENT OF AGRICULTURE AND INSPECTION, ET AL. (NEBRASKA PETROLEUM MARKETERS, INC., ET AL., INTERVENERS).
• Court: Nebraska Supreme Court

262 N.W. 492

129 Neb. 651

SMITHBERGER ET AL. v. BANNING, SECRETARY OF DEPARTMENT OF AGRICULTURE AND INSPECTION, ET AL. (NEBRASKA PETROLEUM MARKETERS, INC., ET AL., INTERVENERS).

No. 29603.

Supreme Court of Nebraska.

September 20, 1935

Syllabus by the Court.

1. The legislative power of the state is vested in the Legislature subject only to the initiative and referendum provisions specifically reserved to the people. Const. art. 3, § 1.

2. The power of the Legislature to make laws is a sovereign power requiring the exercise of judgment and discretion, which cannot be delegated to an administrative board.

3. The state Legislature has no power to delegate any of its legislative powers to any outside agency such as the Congress of the United States.

4. A statute which appropriates $4,000,000 for " work relief direct relief, old age assistance, assistance to dependent mothers and children, unemployment insurance, health of mothers and children, public health or related matters of security and welfare, and public works, especially roads, by the use of work relief labor," to be expended by an administrative board, without providing rules and standards of guidance and leaving the distribution of the fund among the various purposes set out in the act to the arbitrary discretion of the administrative board, is an unconstitutional attempt to delegate legislative authority.

5. A statute appropriating $4,000,000, or so much thereof as may be required, to be ex pended under the terms and conditions provided by an act of the Congress of the United States to be passed in the future, is an unconstitutional attempt on the part of the Legislature to delegate legislative authority to the Congress of the United States.

6. Where the purpose of a statute is to accomplish a single object only, and some of its provisions are unconstitutional and void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portions.

7. The elimination of the invalid provisions of House Roll No. 675 as amended by Senate File No. 367, and of Senate File No. 363, as amended by House Roll No. 432, and the elimination of the invalid appropriation contained therein, leave entirely different statutes from those which were passed by the Legislature so that it cannot be said they would have been passed without said void provisions, and each of the acts must therefore be held void in its entirety.

8. Senate file No. 363, as amended by House Roll No. 432, held to violate section 1, art. 2, and section 1, art. 3, of the Nebraska Constitution, for the reason that it attempts to delegate legislative authority to an administrative board.

9. House Roll No. 675, as amended by Senate File No. 367, held to violate section 1, art. 2, and § 1, art. 3 of the Nebraska Constitution, for the reason that it attempts to delegate legislative authority to the Congress of the United States.

Original action by Louis Smithberger and others against William B. Banning, Secretary of the State Department of Agriculture and Inspection, and others, wherein the Nebraska Petroleum Marketers, Incorporated, and another intervened in behalf of themselves and all others similarly situated. On defendants' general demurrers to the petition and to petitions of intervention.

Demurrers overruled.

Fay H. Pollock, of Stanton, W. S. Aten, of Holdrege, John P. McKnight, of Auburn, H. G. Burke, of West Point, G. J. McGinley, of Ogallala, W. E. Mumby, of Harrison, Emil J. Eret, of Crete, Ralph J. Nickerson, of Papillion, W. G. Kieck, of Plattsmouth, Lloyd L. Pospishil, of Schuyler, Burr R. Davis, of Wayne, Erwin A. Jones, of Seward, Elmer Rakow, of Neligh, Ray E. Sabata, of David City, Paul R. Morris, of Omaha, Ted R. Frogge, of Elwood, Elbert H. Smith, of Lexington, Charles H. Hood, of Wahoo, and E. Gudmudsen, of Hyannis, for plaintiffs.

Wm. H. Wright, Atty. Gen., Milton C. Murphy, Asst. Atty. Gen., and Sterling F. Mutz and Lester A. Danielson, both of Lincoln, for defendants.

Lee Basye, of Lincoln, for interveners.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

CARTER, Justice.

This is an original action by which certain taxpayers seek an adjudication of the constitutionality of the emergency relief measures enacted by the fiftieth session of the Nebraska Legislature, which measures are known as Senate File No. 363, House Roll No. 432, House Roll No. 675 and Senate File No. 367, the same being companion acts creating a state assistance committee and providing for the raising of funds to be used for the relief of the unemployed, old age pensions, and for other purposes therein described. The Nebraska Petroleum Marketers, Inc., intervened in behalf of the members of such association and all other persons similarly situated. Calvin J. Stover, a gasoline dealer and a taxpayer who is required to pay the one-cent additional gasoline tax, as provided by Senate File No. 363, also intervened in behalf of himself and all others similarly situated. The case is presented and submitted on the general demurrers of the defendants to the petition of plaintiffs and the petitions of intervention of the interveners.

Senate File No. 363, as amended by House Roll No. 432, imposes a one-cent motor vehicle fuel tax, in addition to the previous four-cent gasoline tax, for emergency relief purposes, said tax to be collected from March 1, 1935, to June 30, 1936. The act provides in part as follows: " For assistance to its citizens who are eligible under federal legislation to work relief, direct relief, old age assistance, assistance to dependent mothers and children, unemployment insurance, health of mothers and children, public health or related matters of security and welfare, and public works, especially roads, by the use of work relief."

House Roll No. 675, as amended by Senate File No. 367, appropriated $300,000 of the state general fund, $700,000 of liquor license fees and $3,000,000 from the emergency motor vehicle fuels tax, and provides governmental ma chinery for the distribution of the funds, consisting of the state assistance committee, an administrative board, coordinating with the board of educational lands and funds of the state of Nebraska, a trustee of the state assistance fund. Section 13 of House Roll No. 675 provides in part: " Such grants by the state assistance committee shall be made in proportion to the need of such counties and other governmental subdivisions for assistance, when, after reasonable effort, they are unable to furnish necessary and adequate assistance for dependent persons."

The acts of the Legislature under consideration designate many classes of emergency and permanent relief and provide that preference should be given for matching federal funds for old age assistance, without any direction or limitations for allocating funds for any of those purposes and without any basis for the determination of the need.

In order to make a county eligible for federal relief, under the rules promulgated by the federal relief administration, the county must provide for its road and bridge funds an amount equal to 25 per cent. of its gasoline tax income for such purpose, and, in addition thereto, levy 1.93 mills of the 1934 assessed valuation for relief purposes, and certain other relief levies not material to this action. It is contended by plaintiffs, and admitted by defendants' demurrer, that certain counties of Nebraska are already making the maximum levies permitted by the Constitution and they are therefore precluded from making the required levy for the matching of federal funds for relief purposes. In certain other counties the relief load has been borne by the counties themselves by levying less than the 1.93 mills required by the federal relief administration and hence they also are ineligible for federal relief.

At the date of the filing of the petition, the Congress of the United States had not passed any law providing for old age assistance, public security, health and welfare. It is also admitted by the pleadings that there are distressed and needy persons in all counties of the state of Nebraska within each and all the classifications contained in the acts in question, and particularly within the 23 counties above mentioned which are not eligible for federal relief.

The plaintiffs contend that the laws in question are unconstitutional for the following reasons: (1) That the acts delegate legislative powers to the Congress of the United States and to the executive branch of the state government and therefore violate section 1, art. 2, and section 1, art. 3, of the Constitution; (2) that the acts are not for a general or public purpose, for the reason that the benefits are not state-wide in their scope and do not affect all needy persons of the state in the same class, and therefore violate section 3, art. 1 of the Nebraska Constitution, and the Fourteenth Amendment of the Federal Constitution; and (3) that the acts are broader than their respective titles and therefore violate section 14, art. 3 of the Nebraska Constitution.

The first question to be determined is whether the Legislature has delegated legislative authority to the Congress of the United States or to the state assistance committee. If so, the act contravenes section 1, art. 2, and section 1, art. 3, of the Constitution of Nebraska.

Senate File No. 363, as amended by House Roll No. 432, provides in part as follows: " An additional tax of one cent per gallon upon all motor fuels received, imported and unloaded and emptied, * * * and produced, refined, manufactured or compounded by such dealer in the state of Nebraska shall be remitted to the department of agriculture and inspection * * * commencing March 1, 1935, and ending ...